Post-Conviction Relief: 1992 Health & Safety Code section 11352(a) Controlled Substance Offense – Vacated per Penal Code section 1016.5 & Dismissed per Penal Code section 1382

Recently, at the Clara Shortridge Foltz Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 1992 Health & Safety Code section 11352(a) “Possession of a Controlled Substance for Sales” felony conviction.

Although this conviction was twenty-six years old and our client had no other criminal convictions, this offense was causing him dire immigration consequences.

Our office began by investigating what documents existed from the conviction. We determined that the manual docket was available from the date of the plea but the transcript of the plea and court reporter’s notes had been destroyed and were no longer available.

According to the docket, our client was advised “of the possible effects of plea on any alien/citizenship/probation/parole status.” However, according to case law, this advisement fails to satisfy the requirements of Penal Code section 1016.5 as a matter of law. (See People v. Dubon (2001) 90 Cal. App. 4th 944, 955).

Based on the lack of record that our client was properly advised pursuant to Penal Code section 1016.5, we filed a motion to withdraw the plea pursuant to that Section.

At the final hearing on the motion, the motion was granted and the charge was dismissed pursuant to Penal Code section 1382, the People announced they were unable to proceed.

With this result, our client now has a better opportunity to stay united with his family and continue to live in the home he worked hard to purchase.

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